Posted
by
Soulskillon Friday July 22, 2011 @08:53AM
from the how-generous dept.

alphadogg writes "Sun Microsystems offered to license its Java technology to Google for $100 million, a Google attorney said Thursday, attempting to show that Oracle is out of touch as it seeks billions from Google for patent infringement. Oracle and Google were in court for a hearing in Oracle's lawsuit accusing Google of patent infringement in its Android OS. Judge William Alsup was in a feisty mood, warning Oracle that 'this court is not a wholly-owned subsidiary of Oracle Corporation' and telling Google that Andy Rubin, who runs its Android business, will be 'on the hot-seat' at trial. He also criticized both parties for taking unreasonable positions regarding the amount of damages owed for the alleged infringement."

It's really nice to see this judge cutting through most of the crap without endless cycles of discovery, but he's WAY off base here:

"Is there a single Sun executive you have found who will come forward -- who's not on the payroll, by the way -- and say fragmentation is terrible"? Alsup asked Oracle's attorney.

My god, avoiding Java fragmentation was a cult religion at Sun (witness the Microsoft Java suit). Keeping Java under one umbrella was pretty much ALL Sun cared about for the last ten years of its life.

Agreed! I was surprised to see that the judge used those words, as I thought the question to be answered by a Sun employee not on Oracle's payroll was not "is fragmentation bad?", but rather "did Android fragment Java?"

From earlier in TFA:

Jonathan Schwartz, Sun's former CEO...testified that Android did not fragment the Java platform.

The previous litigation was about calling the fragmented version "Microsoft Java", though (i.e. primarily a trademark issue).

Anyway, I don't think Sun minded fragmentation of language itself - at least they certainly permitted various extensions - so much as the JVM platform itself (i.e. non-compatible.class formats etc). By that metric, Dalvik either horribly fragments Java (if you consider it Java to begin with), or else it's something else entirely and bears no relation. I think any reasonable person wo

They could ask Gosling, oh wait he works for Google now. This is a tough issue for me at least. Java was designed by, written first by, marketed and pushed by Sun. Though this was years ago. By now it has indeed become popular but there are patents that still apply regardless of if its been rewritten by others. See, see it isn't Java - we changed the namespaces!!! It is understandable that Sun didn't want fragmentation of Java. It is one of the remaining great things they did. The $100m price to license Jav

Really? Then why the hell is there Java, Java ME and Java RT? All three are definitely not compatible in any reasonable way...
They cared not about fragmentation, but about not letting Java slip out of JCP control. Now if JCP did not require some stupid licensing provisions from Java implementations, Apache Harmony would have been a valuable project in the ecosystem... Sun had those requirements and Oracle have turned around on their position...

Publicly traded company can't just buy other companies at a whim... There was no justification for Google to buy Sun. Because Sun had Software and hardware business, while Google is a services company.

Yet the damages that Oracle now demands from Google are about as much as what Oracle paid for Sun. Of course those demands are ridiculous, but still, this possibility could have been a justification for Google to buy Sun. And maybe after stripping out Java, they could have sold the hardware part again.

I do think $100 million is a bit much for licensing Java, however Google has to admit that the Java technology is worth a considerable amount of money since they worked hard to copy it.

If they both knew what was good for them, they would enter into some cross licensing agreement where Google can focus on something else besides trying to defend their blatant copy of JVM, and Oracle would have access to Google's refinements that made Java run better on underpowered hardware (register based v. stack based JVM

Google can focus on something else besides trying to defend their blatant copy of JVM, and Oracle would have access to Google's refinements that made Java run better on underpowered hardware (register based v. stack based JVM).

There is no such thing as a copy of Suns JVM etc.The only thing that is "similar" is the fact that the "language" used to program on Android "looks like" Java and is ofc from a programmers point of view the same as Java.However as soon as you start doing serious development, you realize there is no "Android Java Platform" there is only a language!

In other words: there is no claim or wish or hint that a "Java Program" would run on Android. The programs need to be considered "Android Programs". The opposite is true as well, an Android Program is not advertized to be compatible to any Java Platform in any way.

Java is just a modern Pascal in this case or a newer C...

If you bring the point about register based VMs versus stack based ones, then python and parrot infringe also Oracles patents?

I think combining their efforts would bring true innovation to the market, but this patent war is doing the exact opposite. Google and Oracle both need to step back and see that they both are shooting themselves in the foot. If people needed a concrete example of how patents can stifle innovation they only need to look at this case.

There is no such thing as a copy of Suns JVM etc.
The only thing that is "similar" is the fact that the "language" used to program on Android "looks like" Java and is ofc from a programmers point of view the same as Java. However as soon as you start doing serious development, you realize there is no "Android Java Platform" there is only a language!

First of all JVM isn't Java SDK. Part of the process of compiling an Android program is to convert the byte-code instructions used by Oracle's JVM into another v

But what are these patents and how do they apply? Is there really a patent on Sun's bytecode format for JVM, which is in no way that special or unique. There's only so many ways to do this, and anyone who's familiar with a variety of existing byte-codes, from UCSD P-code or Smalltalk-80 would derive something very similar.

No, it doesn't require a Sun JDK. It requires a compiler that is capable of translating a source written in Java (the language) into a.class file containing JVM bytecode. You can use any of the several dozen available compilers for that purpose, or write your own.

By the way, you could write a program that translates Java bytecode to.NET bytecode (indeed, such already exist - e.g. IKVM). Is the existence of such a program sufficient to say that ".NET is Java"?

Visual J++ was the development environment (a part of Visual Studio) - that was not the issue. The issue was that the virtual machine was called "Microsoft JVM", and loaded.class and.jar files - with several non-standard extensions like delegates, which the license agreement that allowed the use of the trademark "JVM" and "Java" did not allow.

Software patents are tired, pointless and ultimately just fucking dumb.

Watching the patent wars that are continuing to errupt in the mobile telecoms market is clear evidence of this. Everyone is suing everyone else for breaching ideas, rather than implementations.

I may have gotten this completely wrong, due to all the Chinese Whispers that comes with this kind of thing, but if it's true, how on earth can Apple patent the idea of recognising a phone number in a piece of text. Jesus Christ, you can do that with a fucking regular expression..!

(surely the above is not what they're suing HTC over, right???)

Software patents need to go, as this is all starting to become fucking ridiculous.

Instead of innovation to draw customers and and generate revenue, Microsoft, Apple and even now HTC are reaching into their portfolios and waving crappy bits of paper in each others faces.

"Customers? We don't need customers!" they screech. "We're just going to make our money off you, instead!"

Really? The thing that pushed you over the limit was that Angry Birds makers are being sued for an unknown patent? It wasn't One-Click Purchase or Cat-laser-pointer games? I'm not sure what I think about that.

The FA did say that Rovio had not yet been presented with official documents and the article was pretty slim on details regarding what patents were abused. This sounds/looks more like a good 'ol mobster shakedown then violation. What would be nice is if Lodsys was brought up on rackateering RICO charges. It might actually make patent trolls take the time to investigate their cliam before filing.

I believe one of the patents Apple is trying to beat up Android phone manufacturers with is the infamous BT "mobile computer" US patent that they acquired from the UK telco. This seems to prevent anyone else making any form portable device that can run custom applications.

As an European (from Finland), this is mainly a spectacle of American justice system. Here are some random thoughts based on this news.

In here I constantly hear that "American justice system is corrupted, owned by politicians and big money... Blah blah blah." Now we have an example to observe. It seems to me that the judge is this case is not willing to cave in for anything. The junge is strict, has huge balls, and it appears that the best thing he can do for his career, is to make just decision.

I think in general the point isn't so much that it is corrupt, but rather unless you are rich, you wouldn't even be able to stand in court next to these guys as the lawyer costs would be too expensive. A case about IP law is rarely cheap.

Corrupt generally would mean that you can bribe the judge, or jury, to rule in your favor. That is not happening here (as far as we know). If there was any corruption, it was from congress, who made the laws that way to being with, not with the court.

The court merely follows, and makes judgements, based on the rules. That is what it means to have rule of law, and it's really a good thing.

You completely missed his point. His comments are not so much about software patents, but about how people perceive the various justice systems in the world, and the consequences of those perceptions. The whole post could be boiled down to Europeans continually hearing that the US system is such a mess (whether or not it always is) and assume that their own system is better, when in some cases it can be just as bad or worse than the US system. To better illustrate, after the Pirate Bay trials and the whole

I live in Europe (Central-Eastern Europe) so don't preach me about corruption, as I know it pretty well:) . However if we look at the EU level laws, we see that1, there are no software patents2, ACTA still haven't passed, despite heavy lobbying from US side3, age of consent in most places is around 14-16 years.

My point is, if you have less crappy laws, it's harder to abuse them, even if you have stupid/corrupt judges.

If I release some software under GPL-- completely free (beer and speech) -- and someone takes that source code, strips all copyright info, and creates a closed source version of my software, I can receive financial damage compensation. It doesn't matter that my code is available free of charge.

In fact, all Google did was reimplement an already clean-room reimplementation of Java. The case is about software patents, which Oracle claims Google infringed by doing so, not copyrights. The only mention of copyrights was Oracle trying to say "Google made an interface that was compatible with Java" because Google took a public header file (which are non-copyrightable through reason of insufficient expression - because they are *fact*-based files, nothing else) and used it to create a compatible API.

The lawsuit is basically trying to say "no-one, anywhere, can make anything even vaguely similar to Java because we hold the patent on it", not "Google stole our Java code".

Even better than that - they used, in part, an Apache open source project that had already done that (basically reimplemented Java) and reimplemented the Java VM themselves with compatible interfaces so you *can* run Java code on it without (too many) modifications.

But because they wouldn't go through the Java certification process and/or pay off Sun, Oracle waited until they owned Sun (who didn't really care for years) and then tried to sue only Google. Basically, they say that if you're not certified, yo

I don't think you can't implement your own version of Java without being sued, as IBM and the ASF have been distributing their own implementation for years. I think, in poor words, that you can't have a commercial implementation and call it "Java" without giving money to Oracle.

If I remember correctly, Oracle opposed this "field of use" limitation when they weren't the owners of Java. Talk about consistency...

But they did something that you didn't give them an option to pay for, which is completely different than the case in question in which there is a price set for what was done (whether the activity was infringing is a whole other question).

The amount you charge for distributing software under the GPL, even if you offer it gratis, is completely unrelated to then the amount you would charge for offering alternative license terms. Conversely Google are claiming Sun set a price for licensing the technology on the very terms that Google asked for. This can and should be taking into account in calculating any real damages. However admitting that this was discussed also risks strengthening Oracle's case that there was willful infringement, which wou

A sign that they're recognizing that the system has a problem, which, let's be honest - is a great step forward in and of itself. With more pressure from judges like Alsup, maybe we can start to see a move away from the purely-adversarial legal process; where both sides demand the moon because not doing so will just weaken their position to no gain...and because with less time wasted in trial, the lawyers earn less in legal fees.
But, hey, even if he just stops at fixing the symptom, at least he's bloody f

It sounds like the judge is explaining to the lawyers how they should do their job.

He asks for a Sun executive not on Oracle's payroll who would testify in Oracle's favour, then Oracle suggests someone who is on their payroll, and the judge has to explain to the lawyer that someone not on their payroll would be a lot more convincing to the jury. Honestly, can't Oracle's lawyers think of that on their own?

- Sun betting that google would pay $100M to prevent future lawsuits (after all, Google has been playing with fire all along)
- Google betting that they would pay nothing after all, so they preferred to bet "lawyer fees" vs "$100M" vs "lawyer fees + billions"
- Oracle betting whatever they bought Sun for - for a chance to win billions.

Also, lots of small investors with stock in google and/or oracle, just spending the day at the casino:-)

How so? They specifically created a technology base from the ground up which is superior to to Java ME and is NOT a derivative work. Your argument implies either you're being spoon fed misinformation from Oracle, or that all technology development is, "playing with fire." Can you clarify what you meant because I seriously doubt you meant the later and its not clear at all how the former can be the least bit true.

With sufficiently many patents around, it is, since patents don't have the requirement that your work must be derived (rather than your own idea that happens to be similar enough) in order for patent to apply.

It's pretty obvious they knew about these patents but ignored them so that puts them in the wrong.

I'm sure you're right, legally. But morally... "An unjust law is no law at all" is among the most agree upon paradigms of the great thinkers. Google didn't just steal and ship Java - they improved upon it to actually be the first ones to make the promise of mobile Java a reality. Building upon the work of those who have come before is an essential element of progress. Yeah, the patent system was intended t

I'd go the other way. Even if Google didn't have a legal obligation to pay Sun, I'd say that morally it would have been the right thing to do.

I mean come on, we're not talking about a 2-man garage startup being crushed by Sun Microsystems.

The overage sketch is Sun creates Java, nurtures the Java ecosystem, including the millions of developers who are automatically Android developers now, and Google comes along and doesn't feel like sending any money Sun's way.

"Google wanted to partner to save money, but Sun wanted $100mil and I'm pretty sure Google didn't want to invest that much so they decided not to. But Google used the code anyway and that's where they are in the wrong."

That or they figured out a way to work around the patents and avoid being guilty of infringement.

"People have known about Google being in the wrong for about a year. "

Oh, it's written in a blog on the internet. It must be true then. Perhaps we could update Wikipedia to reference the blog just to confirm it to be the case.

"It's pretty obvious they knew about these patents but ignored them so that puts them in the wrong."

Ignored them, or found them to be almost certainly invalid, or simply worked around them? You seem to be rather blindly dismissing some perfectly credible alternative possibilities here.

More realistically the chance are Google examined the patents, felt they were probably not valid and invalidated by prior art or similar, but to avoid having to deal with the hassle of a costly court case, figured it'd approach Sun about licensing. When Sun gave the $100mill figure they quite possibly figured that the risk of the cost of court was probably worth it, Sun probably didn't take it any further knowing that they themselves saw little point in stumping up the cash for a case they'd probably lose. Oracle however obviously thought differently, but, as some of Oracle's patents have already been dismissed as not valid, then perhaps there's some truth to this theory.

You seem to have made a very strong assertion, based on very little fact, whilst ignoring perfectly valid alternative possible events.

You're ignoring some crucial points:1) That google chose a clean-room over SUN tech after the dealmaking failed. That is a perfectly valid defense for a copyright claim - and nothing in the evidence so far suggests that anything other than a copyright claim was ever discussed. Patent claims wouldn't be addressed by a clean-room implementation but so far there is no evidence whatsoever of willfull patent infringement.2) The factor of willful and selective enforcement: several other organisations have built java compatible VM's and compilers (Kaffeine and gcj for example) - and never has sun or oracle sued them -despite stating their aim at java-compatibility.3) That java itself was GPL'd prior to the oracle acquisition and teh terms of that license provides blanket patent coverage over java itself, it's only the java test-suite (used for measuring compatibility) which is licensed differently (thus remaining patentable) and this is why code such as Apache Foundation's Harmony are safe - they don't do those tests. Oracle has yet to show any proof that google ever used the test-suite.4) Public statements by SUN employees that the java patents in question are frivolous (made stronger by the fact that they are the very employees who applied for them) and were only filed to get sun defensive patent protection, and that they even competed to see who could get the stupidest, silliest patent granted.

This case is still very much up in the air in terms of real guilt. Whether you agree with software patents or not - the simple reality is that Oracle has a lot of unanswered questions here and it's by no means clear-cut whether google did in fact infringe any patents at all - let alone what the true damage assesment should be if they did.

I find one thing from this far more disturbing: google claims that real damages should be based on android value only, and since android is zero-cost that damages must be zero-cost as well.The judge declared that zero-cost is not applicable as their other income (ad-revenue) must be considered as tied in with this. This is very concerning because it would make the likely liability of open-source projects that are sued by patent trolls far higher, if the revenue from the supposedly infringing product is to be expanded to include revenue from any other software, service or product which in some way gets bundled or shared on that product then many open-source companies face a far higher risk in patents than they previously did.

Imagine if a company sued wordpress for patent infringement and then claimed that every ad shown on their commercial wordpress.com free blog hosting site is revenue that should count toward the calculation of patent damages ?

3) That java itself was GPL'd prior to the oracle acquisition and teh terms of that license provides blanket patent coverage over java itself, it's only the java test-suite (used for measuring compatibility) which is licensed differently (thus remaining patentable) and this is why code such as Apache Foundation's Harmony are safe - they don't do those tests. Oracle has yet to show any proof that google ever used the test-suite.

Google used Apache Harmony as a base, which is Apache's implementation of the Java runtime and standard library under the Apache 2.0 license.

If Apache Harmony is based on OpenJDK, that's a clear GPL violation, as you're not allowed to change the license on products derived from GPL products, unless explicitly allowed by the copyright owner.

If Apache Harmony is based on OpenJDK, that's a clear GPL violation, as you're not allowed to change the license on products derived from GPL products, unless explicitly allowed by the copyright owner.

But then that would be Apache who broke copyright, not Google.

That wasn't actually the point. Rather, the point is there to show that Android couldn't possibly be protected by the OpenJDK's license because Harmony isn't derived from OpenJDK. And, if Google tried to convince anyone otherwise, it'd be copyright infringement instead (and I imagine Apache would be quite ticked with Google if they tried to prove such.)

I find one thing from this far more disturbing: google claims that real damages should be based on android value only, and since android is zero-cost that damages must be zero-cost as well.The judge declared that zero-cost is not applicable as their other income (ad-revenue) must be considered as tied in with this. This is very concerning because it would make the likely liability of open-source projects that are sued by patent trolls far higher, if the revenue from the supposedly infringing product is to be expanded to include revenue from any other software, service or product which in some way gets bundled or shared on that product then many open-source companies face a far higher risk in patents than they previously did.

Imagine if a company sued wordpress for patent infringement and then claimed that every ad shown on their commercial wordpress.com free blog hosting site is revenue that should count toward the calculation of patent damages ?

That seems perfectly reasonably to me. Try turning this around (and applying to copyrights not patents). If someone violated on the license of an FLOSS license, then the infringer could argue that since the code is available at no cost, then they should not be responsible for any damages. Normally, these cases are settled by just releasing the source or ceasing to distribute the software. However, it is good that the courts recognize that damages can be recouped for "zero cost" software, for egregious cases

The judge declared that zero-cost is not applicable as their other income (ad-revenue) must be considered as tied in with this. This is very concerning because it would make the likely liability of open-source projects that are sued by patent trolls far higher, if the revenue from the supposedly infringing product is to be expanded to include revenue from any other software, service or product which in some way gets bundled or shared on that product then many open-source companies face a far higher risk in patents than they previously did.

Imagine if a company sued wordpress for patent infringement and then claimed that every ad shown on their commercial wordpress.com free blog hosting site is revenue that should count toward the calculation of patent damages ?

There is serious flaw in that logic. First, your wordpress example is flawed because the wordpress software is the basis for the ad revenue. Without wordpress, there would be no ad revenue. However, in Google's case (and assuming for this example that there is some infringement, which has yet to be determined), it should not include all of Google's advertising, only that which is driven by Android devices. Only the ads driven by (delivered to?) Android devices should be considered.

That google chose a clean-room over SUN tech after the dealmaking failed. That is a perfectly valid defense for a copyright claim - and nothing in the evidence so far suggests that anything other than a copyright claim was ever discussed.

Actually it's the other way around - Oracle tried to play the copyright card, but that didn't seem to work so well, so they're focusing on patents now.

The factor of willful and selective enforcement: several other organisations have built java compatible VM's and compilers (Kaffeine and gcj for example) - and never has sun or oracle sued them -despite stating their aim at java-compatibility.

That is not illegal per se - a patent owner can freely permit some people using technology covered by his patent to keep using it without paying anything, and sue others. It's not like a trademark. Submarine patents may be illegal, but this is only when you don't sue anyone and don't tell that you hold the patents.

That java itself was GPL'd prior to the oracle acquisition and teh terms of that license provides blanket patent coverage over java itself

"I think that's perfectly sensible (or rather, as sensible as patents ever are). You shouldn't be able to get free reign to infringe on anyone's patents just by making the particular infringing part of your software open source."

But that's not what happened.

The patent holder gpled; the patent holder was aware of the patents when they did it.

Please, elaborate. Obviously with your years of experience as a judge in computer patent cases and with the full access to all the relevant documentation in the case you can provide us with the explanation as to why this is the case now, rather than us having to wait for the lengthy court proceedings to finish!

It's unlikely that even half of the patents are legitimate. Microsoft doesn't get the money because they won a lawsuit, but because these lawsuits are impossible to figure out, and none of the smaller Android players wanted to get involved in that.

what's so great about it? As part of my job I have to set up and config and tune Oracle, been doing that for 20 years. But instead of a Oracle RAC cluster, for instance, could just run solid alternative database (e.g. postgresql) on a large SMP system (getting pretty cheap with all these cores AMD and Intel are slapping on a chip) with any one of several replication mechanisms (some of which don't impact host performance one bit)

Apparently you missed the point, that everything they do except their database is questionable at best.

However, what makes their database great it it's reliability and scalability. For example, it's support for bitmap indexes made it the only viable option for some OLTP systems I've worked on. We tried other databases, but couldn't get the performance and uptime necessary unless we threw so much money into hardware and support people that those systems became significantly more costly than Oracle.

Scalability? I can run other dbms on huge n-way systems. Scaling with RAC, well in the case of read-only with the entire database fitting into memory, sure. Other situations maybe not so much........RAC is more for redundancy than for performance at my clients that have it.

The point is that I didn't have to run a huge array of n-way systems, or a super expensive server to deliver the performance as would have been necessary with other systems. That dramatically lowered the cost of Oracle vs anyone else. And had I outgrown the system I was on, there was a whole lot of room to grow, faster servers, grids, etc. None of the other databases could deliver the performance I needed without spending a ton of money on arrays of faster hardware and the software to allow them to run on s

There is a well established concept of treble (triple) damages in cases of willful violation. While that's not a limit, it's a good guideline. Therefore, if they were willing to license it for $100M, then damages of $300M + court costs is not unreasonable. Above that, you better have a really, really strong case. So far, I've not heard anything from Oracle that indicates there was any actual infringement, only an allegation of infringement. So given that, my opinion (and we know how much that's worth) is th

While this point is reasonable, keep in mind that Google would not only be fined the stated amount, but also injuncted from continuing use of the infringing product. That's would sting, wouldn't you say?

You're off by an order of magnitude: Sun offered Google a license for $100M; Google declined and did a clean-room implementation, Dalvik, which differed from the Sun JVM; *SUN* never complained about patents (in fact Gosling commented after leaving that the Oracle lawyers were all but foaming at the mouth when said patents were discussed during acquisition talks), then *ORACLE* (aka One Raving A*hole Called Larry Ellison) promptly filed suit wanting danegeld from Google for every Android handset/tablet/what